Citation Nr: 1328582 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 07-30 883A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether the Board's issuance of the May 17, 2013 decision denying the Veteran's appeal in the matter of entitlement to service connection for an acquired psychiatric disorder to include PTSD and depression should be vacated on the basis of an incomplete record. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. REPRESENTATION Appellant represented by: Eric A. Gang, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from May 1971 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the RO in Chicago, Illinois, which, in pertinent part, denied service connection for PTSD. As discussed in the Board's January 2010 remand, the Veteran's claim for service connection for PTSD encompasses any acquired psychiatric disorder, and therefore has been recharacterized to reflect this broader scope. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran testified at a September 2009 Travel Board hearing before the undersigned at the Chicago RO. A transcript of the hearing has been associated with the claims file. After remanding this claim for further development in January 2010, the Board denied this claim in a January 2011 decision. The Veteran appealed the Board's January 2011 decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2011 Order, the Court endorsed a November 2011 joint motion for remand, vacated the January 2011 Board decision denying the claim, and remanded the matter for compliance with the instructions in the joint motion. In October 2012 the Board remanded the matter for an addendum opinion to address whether there was clear and unmistakable evidence that the Veteran's psychiatric disorders pre-existed service; and of so, whether there was clear and unmistakable evidence that the pre-existing psychiatric disorders did not increase in severity in service, with consideration of his being involved in a motor vehicle accident in service. An addendum opinion was subsequently provided in October 2012 that addressed the questions posed in the Board's remand. The remand has therefore been substantially complied with and the case is now ready for appellate review. In May 2013 additional evidence was submitted by the Veteran's representative with a waiver of regional office consideration. FINDINGS OF FACT 1. On May 17, 2013, the Board issued a decision denying the Veteran's appeal in the matter of entitlement to service connection for an acquired psychiatric disorder to include PTSD and depression. 2. Evidence pertinent to the matter addressed in the May 17, 2013 Board decision was in VA's possession at the time of the decision, but was not associated with the Veteran's claims file, and was not considered in that decision. 3. The Veteran has an acquired psychiatric disorder characterized as depression and PTSD that was incurred in, or caused by, his military service. CONCLUSIONS OF LAW 1. The Board's issuance of the May 17, 2013 decision denying the Veteran's appeal in the matter of entitlement to service connection for an acquired psychiatric disorder to include PTSD and depression was based on an incomplete record and constituted a denial of due process, requiring vacatur of that decision. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2013). 2. The criteria for service connection for an acquired psychiatric disorder characterized as depression and PTSD have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Vacatur The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904. In May 2013, the Board issued a decision denying the Veteran's appeal in the matter of service connection for an acquired psychiatric disorder. It has subsequently been brought to the Board's attention that evidence had been received by the Board but was not associated with the claims file at the time of appellate review. Accordingly, the Board finds that the May 17, 2013 Board decision was based on an incomplete record and violated due process. As the May 17, 2013 Board decision denied the Veteran due process of law, that decision must be vacated. This vacatur is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b). II. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this decision, the Board grants service connection for an acquired psychiatric disorder characterized as depression and PTSD. This award represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. III. Service Connection The Veteran claims entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression. Specifically, the Veteran argues that while on active duty he was involved in a car accident in which he was the driver, and a fellow service member died. He contends that his current psychiatric problems stem from this event. A statement by the Veteran's daughter received by VA in November 2006 reflects that the Veteran had told her that the Air Force never questioned his mental health prior to the car accident. The Veteran's daughter also stated that the Veteran reported to her that for a year after the accident he could not look at a passing car, pass a bridge, or hear a car passing quickly without ducking his head in fear. The Veteran's daughter stated that she had observed the Veteran "shaking these thoughts from his head." She stated that the Veteran continued to have a fear of driving and indeed has not been driving cars since 1994, and that he continues to suffer from intrusive thoughts of the accident. At the September 2009 Board hearing before the undersigned, the Veteran stated that after the in-service automobile accident, he began seeing a psychiatrist regularly on base. The Veteran stated that at that time his superiors felt that "something was missing" or that he "was just not functioning right." Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., a diagnosis under DSM-IV]; a link, established by medical evidence, between current symptoms and a stressor event in service; and credible supporting evidence that the claimed stressor event in service occurred. 38 C.F.R. § 3.304(f). VA amended 38 C.F.R. § 3.304(f) to liberalize the evidentiary standard for establishing a required in-service stressor where a claimed stressor is related to fear of hostile military or terrorist activity. See 75 Fed. Reg. 39,843 (stating that the amendments are applicable to appeals currently before the Board that have not yet been decided). 38 C.F.R. § 3.304(f)(3) (2013). Here, the Veteran's claimed in-service stressor is not related to fear of hostile military or terrorist activity but rather to his involvement in a car accident, the occurrence of which has been established. Thus, the amendment to section 3.304(f) is not applicable to the present claim. In some circumstances, certain chronic diseases listed at 38 C.F.R. § 3.309(a) may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309(b). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus"). In instances where the disability at issue is not considered a chronic disease under 38 C.F.R. § 3.303(b), the only two avenues for establishing service connection are by demonstrating that the disability occurred coincident with service under 38 C.F.R. § 3.303(a); or when the evidence shows that a disease diagnosed after service was incurred in service under 38 C.F.R. § 3.303(d). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. A history of conditions existing prior to service recorded at the time of the entrance examination does not constitute a notation of such conditions for the purpose of establishing whether the Veteran was of sound condition at enlistment. See 38 C.F.R. § 3.304(b)(1). However, the recording of such a history in the entrance examination will be considered together with all other material evidence in determinations as to inception of the disability at issue. See id. The Board notes that the presumption of soundness can be rebutted by clear and unmistakable evidence consisting of the Veteran's own admission of a pre-service history of medical problems during inservice clinical examinations. See Doran v. Brown, 6 Vet. App. 283, 286 (1994). In this regard, in order to rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F 3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-03. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (2012); Wagner, 370 F 3d at 1096. If this burden is met, then the veteran is not entitled to service connection benefits. Wagner at 1096. A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity. Townsend v. Derwinski, 1 Vet. App. 408 (1991); 38 C.F.R. § 3.306(a). In contrast, a flare-up of symptoms, in the absence of an increase in the underlying disability, does not constitute aggravation of the disability. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991); see also Green v. Derwinski, 1 Vet. App. 320, 323 (1991) (evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376- 77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Veterans Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Turning now to the facts of this case, initially the Board notes that the issue of whether the Veteran is considered sound at entry into service is raised. The Veteran's April 1971 entrance examination is negative for diagnoses or clinical findings relating to a mental health disorder. The Veteran was found to be psychiatrically normal. Therefore, the Veteran is considered sound at entry unless there is clear and unmistakable evidence that he had a psychiatric disability that pre-existed service. On the report of medical history, the Veteran indicated that he had a history of depression or excessive worry as well as an excessive drinking habit. Given that the presumption of soundness can be rebutted by clear and unmistakable evidence consisting of the Veteran's own admission of a pre-service history of medical problems during inservice clinical examinations, the Board finds that the presumption of soundness has been rebutted by the Veteran's statements on his entry examination report. See Doran v. Brown, 6 Vet. App. 283, 286 (1994). Therefore, the next inquiry in this case is whether there is clear and unmistakable evidence that the Veteran's pre-existing psychiatric disability was not aggravated by military service. The service treatment records show that in November 1971, the Veteran was diagnosed with a situational reaction. It was noted that the Veteran had been working in the Heat Shop on base and that he expressed marked worries about working with electricity. He stated that he was afraid he would electrocute or shock himself. It was noted that there was no evidence of a neurosis or psychosis. A June 1972 medical evaluation reflects that the Veteran wanted to be discharged from the Air Force because he felt that "blacks [were] given a hard time" due to discrimination. It was noted that the Veteran had recently been reprimanded for being absent without leave (AWOL) and for fighting. It was also noted that the Veteran had been arrested in civilian life on a number of occasions for vagrancy and curfew violations. On examination, the examiner found no evidence of neurosis, psychosis, or organic brain disease. The Veteran was diagnosed with a character and behavior disorder and an "inadequate personality." A line of duty determination reflects that in July 1972 the Veteran was involved in a car accident and sustained a compound fracture of the arm and minor cuts. The Veteran was the driver of the vehicle. Another service member was killed in the accident and two other service members were injured. In August 1972, a service examination report reflects that the Veteran's psychiatric condition was found to be abnormal based on the interview described in the June 1972 medical evaluation discussed above. A copy of this medical evaluation was attached to the August 1972 examination report. It was also noted in this report that the Veteran reported difficulty sleeping because of an automobile accident involving the death of a friend in which the Veteran was the driver. An October 1972 service treatment record reflects that discharge had been recommended for the Veteran due to an inadequate personality disorder. The Veteran separated from service in December 1972. After service, private hospital records dated from 1994 to 1998 show the Veteran was admitted on July 21, 1994 with a principal diagnosis of opioid dependence and secondary diagnoses of cocaine and alcohol dependence and depressive disorder. The Veteran mentioned that he had had previous psychiatric care at the same hospital in 1988 and 1991. It was noted that the Veteran began using drugs approximately 20 years ago and also exhibited signs and symptoms of depression, as well as a disorder of affect. A later statement from the Veteran in July 1994, however, shows that he denied any psychiatric history but complained of increased depression and suicidal ideation in April. An occupational therapy initial assessment notes that the Veteran reported difficulty with recall; it was noted that his memory appeared select. He also reported difficulty managing his anger. He had a history of violence and conflict. The Veteran was discharged from the hospital on July 30, 1994. A December 2000 VA treatment record reflects that the Veteran reported a history of being unable to complete schooling since 1973. He also reported symptoms of moderate depression including fatigue, insomnia, and low motivation to complete tasks. After an examination, the Veteran was diagnosed with dysthymic disorder and an antisocial personality disorder with borderline traits. A January 2001 VA treatment record reflects that the Veteran reported difficulty with attention, concentration, memory, and ability to follow through on tasks throughout his adolescence and adulthood. A March 2005 VA treatment record reflects that the Veteran's history of violence to self and others included being a victim of childhood physical and possible sexual abuse, gang-related violence during his teens, and being involved in an automobile accident during service. After examining and interviewing the Veteran, the treating psychiatrist concluded that the Veteran might qualify for a diagnosis of PTSD from childhood antecedents including physical and perhaps sexual abuse. She also found that the Veteran had a mood disorder secondary to a forty-year history of substance use exacerbated by life circumstances, a personality disorder, a childhood head injury, and possible cognitive problems. The Veteran was diagnosed with depression and "probable PTSD from childhood antecedents," as well as a personality disorder. At a March 2006 VA examination, the Veteran described long- standing depression and difficulty sleeping. His symptoms occurred frequently and were moderate in severity. The examiner diagnosed the Veteran with major depression but did not find evidence to support a diagnosis of PTSD. An article submitted by the Veteran reviews a book published by the American Psychological Association, which reflects a finding that motor vehicle accidents are the leading cause of PTSD in the general populations. The authors further found that many of those who suffered from PTSD who had been in a motor vehicle accident also suffered from depression. Another article submitted by the Veteran reflects that psychological disorders, such as depression, can predispose an accident victim to developing PTSD. The article reflects that the main symptoms of PTSD are, among other things, re- experiencing of the traumatic event, persistent avoidance of stimuli associated with the trauma, and symptoms of increased arousal that were not present prior to the trauma. Next to this passage, the Veteran wrote in a marginal note that for two and a half years he would duck when passing cars on the highway. The article also states that those who had been in a car accident or experienced other trauma were more likely to suffer from PTSD in subsequent car accidents. The Veteran noted here in the margin that he had been in a car accident a few months prior to the one at issue. The article further states that survivors of car accidents in one study developed a fear of driving. The Veteran noted here in the margin that he stopped driving in 1994 due to thoughts of disaster. Finally, the article states that in one "particularly severe" case a man still experienced insomnia, gastrointestinal problems, persistent worry, and headaches twelve years after an automobile accident. The Veteran noted in the margin that he suffered an ulcer at age 35 and colitis or Crohn's disease at age 49. A July 2007 VA examination report reflects that after reviewing the claims file and examining the Veteran, the examiner found that the Veteran had major recurrent depression. It was found that his symptoms did not meet the criteria for PTSD because the Veteran did not report behavior or social changes, re-experiencing, or heightened physiological arousal due to service. In the March 2010 VA examination report, the examiner reviewed the Veteran's claims file and provided an extensive overview of the medical evidence therein. On interviewing the Veteran, the examiner noted that the Veteran showed no emotion when discussing the in-service automobile accident. The Veteran stated that he could not remember any difficult dreams, but did have flashbacks of his "past history." The Veteran stated that he had suffered from depression since he was a child. After carefully reviewing the claims file and interviewing and examining the Veteran, the examiner diagnosed the Veteran with bipolar affective disorder with depression and paranoia. He also found that the Veteran had a sociopathic personality disorder. It was noted that the Veteran had severe childhood abuse and a family history of addiction and depression. The Veteran did not show any signs of PTSD related to military service. The examiner noted that in some VA treatment records (discussed above) there was an indication that the Veteran had childhood onset PTSD from a chaotic environment, deprivation, and severe physical abuse. However, the Veteran did not show PTSD symptoms during the examination under the DSM-IV criteria. He did not have behavior or social changes, re-experiencing, or heightened physiological arousal due to service. The examiner concluded that the Veteran's bipolar disorder and depression were not etiologically related to military service but rather to his early developmental years. The examiner further found that the automobile accident in service did not constitute a stressor for the Veteran in terms of a diagnosis of PTSD. The examiner concluded that many of the Veteran's difficulties were related to his personality disorder and a lifelong pattern of maladaptive behavior. In an April 2010 VA treatment record, the Veteran reported experiencing heightened anger and vigilance regarding a conflict that his son was having with someone to whom his son owed money. This was found by the treating provider to be the Veteran's "current crisis." The Veteran also stated that he was reflecting more frequently and more intensely on issues in his own personal history. The Veteran was referred to a day hospital program. In VA treatment records dated from late April through June 2010 and reflecting treatment at the day hospital program alluded to above, the Veteran began reporting a sense of numbness and "disassociation" of the left arm and psychiatric symptoms relating to the car accident in service as follows. In a May 2010 VA treatment record, the Veteran stated that he lost consciousness after a car accident while he was in the military. He stated that he pulled the surviving passengers from the car with his left hand as his right hand had been injured. He reported that occasionally he could not feel his left hand or arm and did not recognize it as his own. He thought this experience might be "psychosomatic." In another May 2010 VA treatment record, the Veteran was tearful when he described the accident and stated that he had thoughts of cutting his left arm off to free himself from the guilt of not saving the friend who died in the accident. Another May 2010 VA treatment record reflects that the Veteran reported recurring and intrusive thoughts about his in-service car accident. The Veteran stated that at times he heard an "audible sound" of someone moaning in pain, and that at those times his left arm tended to stiffen up. The treating VA psychiatrist stated that the Veteran had symptoms of PTSD related to the car accident in service. The Veteran's symptoms included re-experiencing, intrusive memories, nightmares, intense physical reactions when thinking of the trauma, numbing and avoidance, and poor sleep. In additional VA treatment records dated in May 2010, the Veteran continued to describe intrusive memories and other symptoms associated with PTSD related to the car accident. A June 2010 VA treatment record reflects that the Veteran's depressive, anxious, and dissociative symptoms appeared to "clearly relate" to the car accident in service, warranting a diagnosis of PTSD and undifferentiated somatoform disorder. This record was authored by a psychology extern. As previously discussed, the Board primarily relied on the March 2010 examination report in denying the Veteran's claim in January 2011. However, the Court vacated the Board's January 2011 decision and remanded the matter, pursuant to a joint motion for remand. The parties to the joint motion determined that the Board should consider whether the March 2010 VA examination adequately addressed whether the Veteran's pre-existing psychiatric conditions were aggravated by service, and to determine whether the motor vehicle accident in service caused or aggravated the current psychiatric conditions. The joint motion also mentioned that the examiner should address the Veteran's lay evidence of pre-service depression and sleep problems under the correct clear and unmistakable evidence standard, rather than the Board's determination in the decision that the Veteran's self-reported depression and sleep problems constituted "significant" evidence that rebutted the presumption of soundness. During the interim, the Veteran submitted a private medical opinion from Dr. Maloof, a staff psychiatrist, who noted the findings in the service treatment records, including the motor vehicle accident, and that the Veteran held himself responsible for the passenger who died in the car accident, had had many avoidant and physical symptoms since that time, and had not driven a car since 1994. Dr. Maloof also noted that a military doctor, Captain Brown, had noted in August 1972 that he would not recommend discharge for the Veteran at that time as the Veteran had been cooperative, understanding, and capable and with a little extra effort his being retained in the Air Force would be a benefit both to him and the Air Force. The Board notes that the treatment record referenced by Dr. Maloof was in the context of the Veteran's continuing medical problems with his right forearm fracture. Dr. Maloof found that the Veteran's lateness, Article 15s, and fear around his work situation in the military involving electricity undoubtedly led to his discharge from the service shortly after the car accident. Dr. Maloof cited to a White House/ USA Freedom Corps report in May 2007, which stated that "Not only are almost half of those in car accidents at a noticeable risk for developing PTSD, but there are other non-symptomatic signs that affect them, like having trouble on the job and in school, maintaining friendships, and not being able to enjoy leisure time." Dr. Maloof noted that for two and a half years the Veteran would duck when passing cars on the highway and had not driven a car since 1994. Dr. Maloof further noted that a July 2007 VA evaluation, which noted an Axis I diagnosis of major depression with the criteria for PTSD not being met, indicated that there was no rapport maintained with the Veteran to elicit the PTSD symptomatology, as no other evaluator gave the Veteran such an Axis I diagnosis. Dr. Maloof went on to note the Veteran's childhood years including witnessing sexual assault by his older brother against his younger brother. Dr. Maloof also noted that PTSD was not recognized until 1980 and that previous clinicians who had evaluated the Veteran had had various reactions to him. Dr. Maloof determined that the Veteran had not been cooperative with a man whom he considered was "ogling" him in a sexual manner. Dr. Maloof listed the current diagnostic criteria for assessing a PTSD diagnosis and determined that the record demonstrated that the Veteran was clearly suffering from PTSD in that he was the driver of a car that crashed and caused injuries to himself and other passengers including the death of one of the passengers. The Veteran's response had involved intense fear, helplessness, and horror. Dr. Maloof found that the Veteran's response was not that of an inadequate personality but one who took responsibility for the safety of friends. Dr. Maloof noted that the Veteran's emotional response was to blame himself for the death of the passenger and that this had led to diagnoses of depressive symptoms, despite therapeutic efforts. Dr. Maloof also commented that the evaluator who had diagnosed him as having major depression with no PTSD components seemed to be inappropriate, as it was reasonable to claim culpability as a driver of an accident. Dr. Maloof determined that the Veteran's failure to protect his younger brother when he was a child also was a factor in his guilt but did not qualify as childhood PTSD. In summary, Dr. Maloof concluded that the Veteran's PTSD was chronic and had lasted well over three months. Dr. Maloof also determined that the emphasis on childhood sexual abuse and its sequelae had focused on its contribution to a childhood form of PTSD, which did not seem to fit the Veteran's condition. Dr. Maloof found that the history of parental neglect, gang-related head trauma, drug abuse, physical and sexual abuse, sleep difficulties, and depressive symptoms were more characteristics of various adolescent disorders and did not appear to have a direct and undebatable primary cause for the Veteran's adult PTSD, which clearly was more significant in his symptomatology, as noted in this report. Dr. Maloof indicated that symptoms occurred soon after the car accident and had only gradually been appreciated by clinicians evaluating and treating the Veteran. Dr. Maloof stated that he believed the personality disorder diagnosis was a rather routine label used at the time of the Veteran's military service to allow for early discharge with no responsibility owed by the service. Dr. Maloof also determined that the Veteran's discomfort and lack of attention to his physical and mental state by his superiors seemed to aggravate his behavioral symptoms rather than mitigate them. The Veteran claimed to be in a "fog" after the accident and unable to attend to his duties, which led to his disciplinary actions supporting his discharge soon after the car accident. The final diagnosis was Axis I: PTSD, chronic. It was Dr. Maloof's opinion that based on the records that the Veteran's mental disorder was as likely as not due to his military service. The Veteran's attorney submitted argument in August 2012 along with the medical opinion from Dr. Maloof. The attorney's argument was that notwithstanding the Veteran's pre-service history of childhood neglect, gang-related head trauma, drug abuse, physical and/or sexual abuse, sleeping difficulties, and depression, there was no clear and unmistakable evidence that the Veteran's psychiatric condition existed prior to service and was not aggravated by service. The attorney noted that even though there was a medical history of depression and sleep problems prior to service, medical history alone did not constitute clear and unmistakable evidence, citing Crowe v. Brown, 7 Vet. App. 238, 246 (1994) in making this argument. The attorney also questioned whether the Veteran's self-reported history alone could conclusively show that he suffered from a psychiatric condition prior to service. The attorney further argued that because Dr. Maloof had found that the Veteran's childhood experiences did not appear to have a direct and undebatable primary cause for his PTSD, that this difference of opinion was enough to establish that there was not clear and unmistakable (i.e., undebatable) evidence of a pre- existent diagnosis of PTSD. Finally the attorney asserted that even if it was presumed that the Veteran's PTSD pre- existed service additional analysis of aggravation needed to be considered as the VA examinations of record assumed without explanation that the Veteran's psychiatric condition was the same at separation as it was when he enlisted into the service, citing Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009). In October 2012, the Board determined that remand was necessary for a supplemental opinion to address whether the Veteran's pre-existing psychiatric conditions were aggravated by service with consideration of whether the motor vehicle accident in service caused or aggravated any psychiatric disorder. In October 2012, a VA medical opinion was provided. The examiner noted a review of the claims file including a copy of the October 2012 remand, the findings in May and June 2010 VA treatment records, as well as the findings on the August 2012 private examination report. In addition, March 2006, July 2007, and March 2010 VA examination reports were carefully reviewed. The examiner determined that to a reasonable degree of medical certainty the Veteran did not suffer from PTSD and had not met the DSM-IV criteria for PTSD in all examinations by forensic examiners, non- advocates, and non-biased examiners in March 2006, July 2007, and March 2010, and did not meet the DSM-IV criteria for depression. All examiners were independent, reviewed all treatment records, and followed the national criteria for compensation and pension. The examiner further determined that the treatment records did not delineate symptoms when diagnoses of PTSD were made, nor did they delineate them in any manner that would meet the criteria for PTSD. With respect to depression, the examiner noted that the Veteran had reported depression since he was 5. His symptoms included sadness, and he could not recall being happy as a child. His depression worsened when he was separated from his wife and was diagnosed with hepatitis C and colitis in 2007. The examiner noted that the Veteran did not report depression again until 1998 when he reported an increase with a history of substance dependence. The examiner determined that the Veteran's military service occurred too far in the past to have been related to his complaints in 1998. The examiner also determined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The rationale was that the Veteran did not report aggravation of any depression until 1998, too far removed from military service to be related. The examiner further noted that his symptoms of depression began at age 5 and that his childhood precipitants for depression were physical abuse and probable witnessing of sexual abuse when he was living with his grandparents. The examiner determined that it did not appear that he had any complaints of depressive episodes in the military, and not until 1998. He also abused heroin and cocaine for about 20 years, and began alcohol abuse in his teens, which was not worsened by military service. It was noted that the April 1971 induction physical showed he complained of "frequent trouble sleeping, depression and what he felt was an excessive drinking habit." In the military he was diagnosed as "no evidence of mental status changes, diagnosis of character and behavior disorder of inadequate personality." A note after the auto accident indicates that he had some difficulty sleeping but no long term effects were noted. It was also noted that when the Veteran discussed the auto accident in the military when one person died that he showed no emotion, as he was discussing the accident, and did not show any evidence of any DSM-IV criteria related to the accident. Another private medical opinion was submitted in May 2013 from Dr. Iofin. Dr. Iofin indicated a thorough review of the Veteran's psychiatric history and noted that he had conducted a telephone interview with the Veteran. He further listed his qualifications and noted that his findings and conclusions were based on personal medical and psychiatric experience and medical literature on depression and PTSD symptoms and diagnoses. Dr. Iofin found that the Veteran had "a significant amount of psychiatric problems directly related to sequelae of the motor vehicle accident" including depression and PTSD. See Iofin opinion, p. 19. While he acknowledged the evidence concerning pre-existing depression prior to service and a difficult childhood, he noted that there was no evidence of psychiatric pathology before the motor vehicle accident took place, as the Veteran was found to be psychiatrically and mentally stable in the entrance examination for the military, and abnormal on mental evaluation after the motor vehicle accident in service, and also reported difficulty sleeping after the accident. Dr. Iofin also mentioned that the Veteran developed phobias of cars and driving and bridges, since he had fallen asleep while driving and the car had flipped over a bridge. See Iofin opinion, pp. 4-7. Dr. Iofa determined that the data showed that the depression the Veteran had before enlisting into service was minor and did not impair his functioning and that he had much more significant and severe manifestations of depression in the form of major depressive disorder related to the motor vehicle accident, as well as complex PTSD with different specific phobias related to the motor vehicle accident. See Iofin opinion, p. 19. As previously discussed, in order to rebut the presumption of soundness for disorders that are not noted at entry, there must be clear and unmistakable evidence of a pre- existing disability and clear and unmistakable evidence that the pre-existing disability was not aggravated by service. The clear and unmistakable evidence standard is a high bar to meet. As noted, the record shows clear and unmistakable evidence of a pre-existing psychiatric disorder based on the Veteran's statements during clinical evaluation at entry into service that he had depression prior to service. The Board notes that the Veteran's attorney has argued that medical history alone does not constitute clear and unmistakable evidence that a current medical condition pre- existed service; and that such a determination requires independent medical evidence, citing to Crowe v. Brown, 7 Vet. App. 238, 246 (1994). The Board notes that in Crowe the issue was whether the Veteran's reported history of asthma prior to service with no recurrence constituted clear and unmistakable evidence of a pre-existing asthma diagnosis. The Court determined that the Board had not addressed the issue of clear and unmistakable evidence of a pre-existing disability in that case and that a medical opinion would be necessary to resolve the issue. Id. However, the case presently being addressed is different in that the Veteran reported a history of sleep problems and depression with no indication that they had resolved. The Veteran's statements and subsequent medical treatment records consistently note ongoing symptoms of depression, rather than depression that was acute or that had previously resolved prior to service. Therefore, this case is not directly in line with the facts addressed in Crowe. Moreover, as discussed above, the record does in fact contain at least one medical assessment that the Veteran's depression clearly and unmistakably pre-existed service from the VA examiner in October 2012. The opinion was based on review of the medical records and the Veteran's statements that he had suffered from depression since he was 5 with the precipitants for depression being physical abuse and probable witnessing of sexual abuse. Again, the service treatment records note at entry that the Veteran reported in the April 1971 report of medical history that he had a history of depression and sleep problems prior to service. The Board again notes that the presumption of soundness can be rebutted by clear and unmistakable evidence consisting of the Veteran's own admission of a pre-service history of medical problems during inservice clinical examinations. See Doran v. Brown, 6 Vet. App. 283, 286 (1994). However, the medical evidence does not show clear and unmistakable evidence that the Veteran's pre-existing psychiatric disorder was not aggravated by his military service. The Veteran was in a motor vehicle accident in service, in which he was the driver and someone died. The motor vehicle accident and death of one of the service members involved was documented in the service treatment records. The service treatment records also note that after the accident the Veteran was found to be psychiatrically abnormal and suffered from problems sleeping. After service, there are multiple conflicting medical opinions regarding what present psychiatric diagnoses the Veteran has and whether they are related to the car accident in service. The March 2010 VA medical opinion was found to be inadequate by the Court, pursuant to a Joint Motion for Remand, as the examiner did not consider the proper clear and unmistakable evidence standard with respect to the issue of aggravation of pre- existing disorder. In the more recent opinions, Dr. Maloof, a private psychiatrist, determined that the Veteran had PTSD related to the motor vehicle accident in service and not related to his childhood traumas. Dr. Iofin, another private psychiatrist, also determined that the Veteran had PTSD and a depressive disorder related to the motor vehicle accident in service. The rationale for these opinions was the medical evidence prior to the car accident and post- accident, and the medical evidence after the Veteran's military service. The October 2012 VA examiner found, however, that the Veteran did not have PTSD and that his depression was not aggravated by service, as he did not show much emotion when describing the car accident in service and did not seek treatment for depression until after service in 1998 for reasons unrelated to the car accident in service. All of the medical professionals considered the Veteran's psychiatric history and the motor vehicle accident in service and provided rationales for their opinions, but came to different conclusions. There is no reason shown to value one opinion over the other. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008) (In determining the probative value of a medical opinion, assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case, whether the medical expert provided a fully articulated opinion, and whether the opinion is supported by a reasoned analysis.). These conflicting and equally-weighted medical findings do not approximate the high standard of clear and unmistakable evidence that the Veteran's pre-existing psychiatric disorder was not aggravated by service, as the issue of aggravation is not undebatable. Therefore, the presumption of soundness has not been rebutted with respect to the issue of a pre-existing psychiatric disorder and the issue is whether the Veteran's current psychiatric diagnoses are related to his military service. The Board finds that the evidence is relatively equally- balanced in terms of whether the Veteran's current depression and PTSD are related to his military service, based on the post-service medical opinions provided, for the same reasons as noted above; specifically there is no reason shown to value one opinion over the other in terms of the etiology of the Veteran's psychiatric disorders. When, after consideration of all evidence and material of record in a case, there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (holding that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."). Because there are medical diagnoses of PTSD and depression related to the Veteran's motor vehicle accident in service, competent and credible evidence that the in-service motor vehicle accident occurred, and in- service evidence that the Veteran was found to have an abnormal psychiatric evaluation and difficulty sleeping after the motor vehicle accident, the Board concludes that the preponderance of the evidence supports the grant of service connection for an acquired psychiatric disorder to include PTSD and depression. Thus, following a full review of the record, and applying the benefit of the doubt doctrine, all doubt is resolved in favor of the Veteran. See 38 C.F.R. § 3.102. Therefore, the Veteran's claim for service connection for an acquired psychiatric disorder characterized as depression and PTSD is granted. ORDER The May 17, 2013 Board decision addressing the issue of service connection for an acquired psychiatric disorder to include PTSD and depression is vacated. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs